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2009 DIGILAW 1300 (DEL)

SUNNY KAPOOR v. INDU SURI

2009-11-19

ARUNA SURESH

body2009
JUDGMENT CM APPL. 16638/2009 (exemption) Aruna Suresh, ]. (Oral) - Exemption allowed subject to all just exceptions. Application stands disposed of accordingly. Appellants by way of this application have sought setting aside of the order of this Court dated 20th July, 2009 and revival of the appeal to be heard and decided on merits on the grounds that appellants never filed any affidavit nor had authorized the Counsel appearing on their behalf to record any compromise for and on behalf of the appellants. 2. It is submitted by Mr. Rajan Bhatia, learned Counsel appearing for the appellants that appellants were never present in the Court and had never compromised their dispute with the respondents. After the order of this Court dated 20th July, 2009, the appellants had filed Special Leave Petition (SLP) in the Supreme Court challenging the said order. Therefore, there was no reason for the appellants to file Affidavit of Undertaking containing the terms and conditions of the alleged settlement. He emphasized that the SLP was dismissed with liberty to the appellants to approach this Court for recalling of its order on the ground that no. consent was given. Therefore, he has filed this application since the order of the Supreme Court makes it clear that the said impugned order has to be recalled and the appeal has to be heard on merits, hence, this application. 3. SLP was dismissed with liberty to the appellants to approach this Court for recalling of its order dated 20th July. 2009. However, the Supreme Court did not reflect on the merits of the impugned order and left it open for this Court to decide. Since, liberty was granted to the appellants to approach this Court to challenge the order dated 20th July, 2009, this application has been entertained. However, application has to be decided on its own merits. Grant of liberty to the appellant to file the application ipso facto does not entitle the appellant to claim recall of the impugned order. 4. Mr. Amit Sethi, learned Counsel for the respondents who has appeared on receipt of advance notice, has submitted that SLP was filed from the same Chamber to which the Counsel for the appellants Mr. Jabar Singh and Mr. H.C. Kharbanda belong. It is pertinent that Mr. Jabar Singh had appeared before the Supreme Court on 24.8.2009 when SLP was dismissed. He was assisted by Mr. S.C. Maheshwari, Ms. Jabar Singh and Mr. H.C. Kharbanda belong. It is pertinent that Mr. Jabar Singh had appeared before the Supreme Court on 24.8.2009 when SLP was dismissed. He was assisted by Mr. S.C. Maheshwari, Ms. Sandhya Goswami and Mr. M.P.S. Tomar, Advocates. Mr. Jabar Singh, who had been 4 appearing as Counsel in this case had made a categorical statement on behalf of the appellants, recorded in the order dated 20th July, 2009. It was during the arguments on the appeal being heard by this Court when the Counsel for the appellants had made the statement indicating the willingness of the appellants to hand over the vacant possession of the suit property to the respondents and also to pay arrears of rent/ damages accumulated till date and rent/damages which would became due to be paid to the respondents every month. It was on his statement that this Court asked the appellants to file a detailed affidavit of undertaking within a week with advance copy to the Counsel for the respondents. The matter was listed for 29th July, 2009. It seems that 5LP was also filed by the appellants through the same Counsel on the same day i.e. on 29th July, 2009. On 29th July, 2009, the Counsel for the appellants, Mr. Jabar Singh sought, one weeks time to file the affidavit and on his request, the matter was listed for 12th August, 2009. On 12th August, 2009, after taking into consideration the undertakings of the appellants given in the form of Affidavits and also after recording of no objection on behalf of the respondents for grant of time to the appellants to vacate the premises, the Court dismissed the appeal. In fact, order dated 12th August, 2009 contained all the terms and conditions of the settlement arrived at inter se the parties. 5. Though, initially the appellants denied their signatures on the affidavits; rather emphasized that no undertaking in the form of affidavits was filed by them in this Court, but when confronted, they admitted their signatures on the Affidavits/Undertaking. It is pertinent that they were identified by Mr. Jabar Singh Advocate before the Notary Public who attested these two Affidavits/Undertakings. These Affidavits/Undertakings were executed on 6th August, 2009. Both the appellants are educated and well conversant with the English language. They knew the consequences of the undertaking given by them to this Court. It is pertinent that they were identified by Mr. Jabar Singh Advocate before the Notary Public who attested these two Affidavits/Undertakings. These Affidavits/Undertakings were executed on 6th August, 2009. Both the appellants are educated and well conversant with the English language. They knew the consequences of the undertaking given by them to this Court. There plea that these documents were signed by them on the understanding that they were to be filed in the Supreme Court, cannot be accepted for the simple reason that SLP had already been filed before the Supreme Court on 29th July, 2009. With the change of lawyer, appellants cannot be allowed to succeed in their endeavour to retain the possession of the premises despite the undertaking having been given to the Court. It is a deliberate attempt on the part of the appellants to side a way and frustrate their Undertakings given to this Court as reflected in the order dated 20th July, 2009 and subsequent order dated 12th August, 2009. Parties cannot be allowed to adopt such recourse to get rid of the order suffered by them on their own undertaking. 6. It is pertinent that at no stage of the case Mr. Jabar Singh Advocate representing the appellants informed the Court that appellants were no longer interested In the settlement reflected in the order dated 20th July, 2009. Rather, he played fraud and mischief with the Court when he sought an adjournment from this Court for filing an Undertaking knowing it well that he had challenged the order of this Court dated 20th July, 2009, which contained nothing but the terms and conditions of the settlement as stated at the Bar by Mr. Jabar Singh assisted by Mr. H.C. Kharbanda, Advocate, in the Supreme Court by way of a SLP. 7. Today, when the appellants were directed to call Mr. Jabar Singh, being their Counsel to assist the Court, it was informed that he had refused to come. Efforts were made by this Court to ensure presence of Mr. Jabar Singh or Mr. Kharbanda. Despite the fact that the matter was kept for hearing in the post lunch session, instead of appearing in person, he sent his junior Ms. Khushboo Bhardwaj Advocate. Mr. Jabar Sing chose to go to Noida to attend the Court as informed by the junior Counsel appearing en his behalf. She further informed that from there Mr. Kharbanda. Despite the fact that the matter was kept for hearing in the post lunch session, instead of appearing in person, he sent his junior Ms. Khushboo Bhardwaj Advocate. Mr. Jabar Sing chose to go to Noida to attend the Court as informed by the junior Counsel appearing en his behalf. She further informed that from there Mr. Jabar Singh would go to Saharanpur, U.P. Conduct of Mr. Jabar Singh, Advocate speaks volumes, the way in which he misled this Court as well as the Supreme Court by adopting two different stands in two different Forums. The conduct of Mr. Jabar Singh, therefore, is highly condemnable and deplorable. In fact, appellants should have brought to the notice of the Bar Council, the conduct of the lawyer if he had acted against their interest as they had not settled their dispute with the respondents. Admittedly, appellants have not filed any complaint against the erring Advocates and have no intention to do the same. 8. Behaviour of the appellants in handling this appeal and the other cases pending inter se the parties clearly indicate that they had compromised their disputes with the respondents in terms contained in the final order dated 12th August, 2009. 9. It is pointed out by Mr. Amit Sethi, learned Counsel appearing for the respondents that the appellants had filed a suit for permanent injunction against the son of respondent No.1 and husband of respondent No.2 seeking restraint order against them from forcibly dispossessing the respondents from the suit property except in due course of law. Since, after this compromise was recorded, the appellants did not prosecute that suit and chose to absent themselves and suffered dismissal order on 12.10.2009. 10. It is of importance to note that the decree under challenge was passed under Order 12 Rule 6, CPC and the suit for mesne profits is still pending adjudication before the trial Court. However, the appellants stopped appearing in the said suit and are not contesting the claim of the respondents for mesne profits. Despite the fact that they have not appeared in the said case for number of hearings, the trial Court still showed indulgence and provided a fair opportunity to the appellants to produce their evidence. The said case is now listed for 24th November, 2009. Despite the fact that they have not appeared in the said case for number of hearings, the trial Court still showed indulgence and provided a fair opportunity to the appellants to produce their evidence. The said case is now listed for 24th November, 2009. Obviously, appellants stopped appearing in the said suit, as the claim for mesne profits payable by the appellants every month till possession was delivered to the respondents, was also settled between the parties. Respondents were to withdraw the suit for mesne profits on receipt of possession of the suit premises. 11. As per the undertaking, the appellants were required to hand over the vacant possession of the suit premises to the respondent on 20th November, 2009. This application has been filed on the eve of the last date for vacation of the premises with the sole motive of getting extension of time to vacate the premises. In that case, the appellants could have fairly approached the Court, seeking extension of time. Instead, they indulged into blame game against the previous Counsel who also represented them in the Supreme Court. Thus, it is clear that the appellants not only settled their dispute with the respondents in terms contained in the order of this Court dated 12th August, 2009, but also acted upon it. They did file Undertaking/Affidavit in this Court. Their denial of having filed any undertaking in this Court under their signatures, at the first instance, stood falsified by their own admission of their signatures on the Undertaking, when confronted with. 12. Under these circumstances, it cannot be accepted that the appellants had not entered into any settlement with the respondents and that their Counsel had no authority to make such statement in the Court. It is not disputed that one of the clauses of the Power of Attorney (Vakalatnama) is the authority given to the Counsel to make statement on behalf of the party including the statement of settlement of the disputes. This term was never withdrawn by the appellants. Therefore, Mr. Jabar Singh, Advocate had the authority to make the statement, as recorded on 20th July, 2009. The application, therefore, is not maintainable as it is devoid of merits. 13. This term was never withdrawn by the appellants. Therefore, Mr. Jabar Singh, Advocate had the authority to make the statement, as recorded on 20th July, 2009. The application, therefore, is not maintainable as it is devoid of merits. 13. In para 8 of the application, it is averred that since the copy of the order of the Supreme Court was made available to the appellants on 4.11.2009, the present application was filed without any further delay or loss of time. SLP was decided by the Supreme Court on 24.8.2009. The period of limitation for filing of an application for review of the order is 30 days from the date of the order. Section 12 of the Limitation Act permits the party to subtract the period obtained by the Court in providing the certified copy, while calculating the period of limitation for filing the review petition. Appellants had applied for certified copy of the order of the Supreme Court dated 24.8.2009, only on 3.11.2009. The copy was ready for delivery on 4.11.2009. The Court took only one days time to prepare certified copy of the said order. The period of limitation for filing the present, application expired on 11.9.2009. Even if, the period of limitation is calculated from the date of the order of the Supreme Court, in that eventuality, the period of limitation for filing the present application expired on 23.9.2009. The appellants applied for certified copy of the said order only on 3.11.2009 i.e. after the expiry of the statutory period for filing the review petition. Therefore, appellants are not entitled to any benefit under Section 12 of the Limitation Act, especially when they have not sought any condonation of delay in filing the present application. Under the circumstance, application also deserves dismissal being barred by period of limitation. 14. The present application is nothing but misuse of process of law and is mala fide. It is accordingly dismissed with costs of Rs.20,000/- to be deposited with Delhi Legal Services Authority, Patiala House Court, New Delhi within 15 days. Application dismissed.